Nisha Gupta, J. - (1.) THE instant civil first appeal has been preferred against the judgment & decree dated 28/09/2006 passed by Additional District Judge (Fast Track), Sawai Madhopur whereby, he dismissed Civil Suit No. 94/2005 (57/2004) filed by the plaintiff -appellants for permanent injunction.
(2.) THE facts giving rise to this appeal in brief are that appellant has filed a suit for permanent injunction on the ground that a disputed property i.e. a plot of land is situated at Bajaria, Sawai Madhopur near Bank of Baroda, measuring 30.6x23 square feet. The land belongs to the respondents and for which, a scheme was prepared in the year 1988 for construction of four big showrooms and shops for letting purposes. The public notice was issued with the contention that they will construct four showrooms and certain shops and the person desirous to take a showroom should deposit Rs. 50,000/ - in the office of the respondents. Rent of the property would be decided according to the market rate. The shops and showrooms would be constructed within six months and possession thereof shall be delivered to the person concerned within six months and if not, security amount would be returned with interest @5% p.a. Appellant showed intention to have showroom No. 2 and deposited Rs. 12,500/ - with the respondents but on 04/02/1994, the respondents have returned the money with interest. The appellant has returned the cheque along with notice dated 08/03/1994. Thereafter, many times he visited the office of the respondents to have the possession of the property. When 30 shops were constructed in 1997, appellant asked to deliver the possession, which was denied hence, suit for mandatory injunction has been filed. Contention of the respondents was that the money has been returned on 04/02/1994 and suit is time barred. No notice u/S. 143 of the Rajasthan Co -operative Societies Act, 2001 (shall hereinafter be referred to as the "Act of 2001") has been furnished. Hence, suit is not maintainable and as per condition, appellants have not deposited the remaining amount of Rs. 37,500/ - within a period of a week and the deposited amount was to be forfeited and as per provisions of Sections 14 & 41(h) of the Specific Relief Act, 1963 (shall hereinafter be referred to as the "Act of 1963"), the suit is not maintainable. On the basis of the pleadings of the parties, the court below has framed as many as 9 issues, which are reproduced, as under: - "(1) Whether the defendants are liable to be restrained by way of permanent injunction to handover the possession of constructed show room No. 2 measuring 30x23 feet to the plaintiff on monthly rent of Rs. 1,000/ - in terms of para 2 of the plaint and as per the map of 1988 as well as agreement? (2) Whether in case if during the pendency of the suit, show room No. 2 already allotted to the plaintiff is given by the defendants on rent to any other person then, allotment should be liable to be cancelled and possession thereof should be handed over to the plaintiff? (3) Whether in case the defendants by making modifications in the earlier map, changed the place and size of show room No. 2 then, defendants would be liable to construct another show room of the same place and size in lieu thereof on their own expenses and provide the same to the plaintiff? (4) Whether prior notice of two moths was liable to be issued to the defendants u/S. 143 of the Rajasthan Cooperative Societies Act before instituting the suit, which in the present case the plaintiff has not done and hence whether the suit is liable to be dismissed on this count? (5) Whether the suit is liable to be dismissed being time barred? (6) Whether the suit is liable to be dismissed as no cause of action arose? (7) Whether the suit is liable to be dismissed for want of jurisdiction? (8) Whether in view of the fact that plaintiff has breached the terms of contract, he is legally entitled to have the specific part of contract of earlier scheme being performed in terms of Section 14 of the Specific Relief Act and for this reason, whether the suit is liable to be dismissed? (9) Relief -
(3.) THE plaintiff in support of his plea, got examined Madan Kant as PW1, Laxmikant as PW2 and Indrajeet Dubey as PW3 and in support of the documentary evidence, got exhibited eight documents and in rebuttal, defendants got examined Mahendra Kumar Sharma as DW1 and in documentary evidence, got one document exhibited as Ex.A1.;